Seventh Circuit Reverses Grant of Summary Judgment as Premature

Reversing dismissal of a Telephone Consumer Protection Act (TCPA) class action, the U.S. Court of Appeals, Seventh Circuit ruled that a plaintiff should have been afforded the opportunity to conduct discovery before his claim was tossed out on summary judgment.

In a 2016 Illinois federal court complaint, Ricky Franklin asserted that Express Text sent him 115 text messages without his consent in violation of the TCPA. Most of those messages allegedly advertised WorldWin events in the Atlanta area. Franklin eventually replied “HELP” to one of those messages and received a response directing him to call Express Text if he did not wish to receive future messages. Franklin did so, and two days later an Express Text employee called him and confirmed he had been removed from the company’s database. Oddly, Franklin then replied to earlier messages, receiving automated responses instructing him to reply “STOP to Opt Out.” Instead, Franklin responded various times with other messages, such as “Hi” and “Is this a real person answering these text messages?” Franklin alleged that the advertising messages he received and the responses to his outgoing messages violated the TCPA.

Shortly after answering the complaint, Express Text moved for summary judgment, arguing that it did not compose the messages at issue and was simply a platform for distributing the texts, pointing the finger at WorldWin as the company that “sent” the messages to Franklin in violation of the statute.

Not surprisingly, Franklin opposed the motion and asked the court not to stay a decision until he could conduct discovery, maintaining that he needed more information to understand the relationship between Express Text and WorldWin.

The district court judge disagreed and granted the defendant’s motion for summary judgment. Relying heavily on the affidavit of Ashish Patel, Express Text’s chief operating officer, the judge ruled that the defendant merely provided a software platform and that the company’s client sent the messages to the plaintiff.

Franklin appealed, seeking an opportunity to conduct discovery on issues such as “any and all agreements” between Express Text and third parties, as well as details on how the defendant’s platform works.

The Seventh Circuit agreed that Franklin deserved a shot at discovery, chastising the district court for faulting the plaintiff for not producing “a hint of evidence” about the relationship between WorldWin and Express Text.

“[W]e do not see how Franklin possibly could refute the facts set forth in Patel’s affidavit—which constituted virtually the only evidence in the record and was the basis for the district judge’s conclusion—without an opportunity to ask how Express Text’s system works or inquire into the relationship between WorldWin and Express Text,” the federal appellate panel wrote. “The affidavit was unrebutted because Franklin lacked competent evidence. Any agreements between WorldWin and Express Text, including whatever user agreement or terms of service Express Text has with its customers, might show that Express Text is responsible for the text messages received by Franklin, or they might not.”

The defendant’s argument that no discovery would have produced information about a relationship where none existed “essentially requires Franklin to take the company’s word as fact without testing the premise,” the court added. “Express Text emphasizes that it is ‘undisputed’ that Express Text was not the ‘sender/initiator’ of the text messages; but that argument makes Franklin’s point: he could not dispute that fact properly with no access to discovery.”

Permitting Franklin to “seek reasonable discovery,” the Seventh Circuit vacated summary judgment in favor of the defendant and remanded the case. However, the Seventh Circuit barred Franklin from pursuing discovery concerning the messages Franklin received after he was removed from the database, as the court “readily agree[d] with the district judge’s conclusion that those messages are not of the kind prohibited by” the TCPA.

Why it matters: The federal appellate panel found the district court judge’s grant of summary judgment was an abuse of discretion that left the plaintiff without access to discovery, remanding the case for Franklin to “seek reasonable discovery.”

Latest Posts

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

"My best business intelligence, in one easy email…"

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Privacy Policy (Updated: October 8, 2015):

hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.